Ethics & Law–Expressing your views on the internet: Private as skywriting

It always happens on that rare warm winter day when you are casually considering whether you can hustle through nine holes of golf before dark if you leave the office early. The phone rings and, as visions of straight drives and long putts fade, you listen to the latest tale of woe from your school district’s technology director.

It seems that one of the features of the network is a usergroup, a sort of electronic bulletin board where ideas, opinions, and other material are posted. Like the tens of thousands of newsgroups that flourish on the internet, the usergroup has its own unique URL (internet address); however, there is no hyperlink on the web page, and the usergroup must be accessed directly.

The topics are generally limited to happenings among the schools in your district, and subscribers include teachers, administrators, and other staff. In order to make the forum more useful, the various exchanges are grouped into threads (messages posted sequentially to the Web site usergroup on a particular topic) that are indexed by subject, date, and the name of the user posting the message.

The Web site manager wants your help in responding to a complaint from a biology teacher who was an active user of the bulletin board. She and other science faculty had been engaged in a thread of postings about upgrading the school district laboratory curriculum. Her problem is a news story in today’s edition of the local newspaper.

The story under the headline, “Schools Scrimp on Lab Supplies,” includes quotes from several usergroup postings, including one in which she wrote that the superintendent was “more interested in budgeting for basketball than biology.”

The teacher wants the school district to do something about reporters “snooping” in the usergroup forum and publishing the “private” exchange of ideas and opinions among school district staff without permission.

The web page has a copyright notice, but individual modules like the usergroup forum only carry the phrase “the contents of this page are copyrighted.”

“Doesn’t matter,” you tell the technology director, “original material is copyrighted under the 1976 Copyright Act. The notice gives you more remedies against infringers, but is no longer a prerequisite to a copyright claim.”

But that isn’t the issue here. Let’s just assume that the teacher’s statement quoted in the newspaper was copyrighted. Would the newspaper’s use of a verbatim quote constitute a copyright violation?

The issue here is whether what the newspaper did would be considered making “fair use” of copyrighted material, as is permitted under Sec. 107 of the Copyright Act.

Normally, a news reporter has broad latitude to make “fair use” of copyrighted material in writing a news story. The wholesale distribution of the contents of the usergroup might be actionable infringement under recent cases such as the 1998 ruling in Infinity Broadcasting Corp. v. Kirkwood, which involved monitoring copyrighted radio broadcasts and re-transmitting the content virtually unaltered to customers. But this is not the case where a few quotes are lifted and re-published.

If the four factors for determining Fair Use, as explained by Justice Souter in the 1994 Supreme Court decision in Campbell v. Acuff-Rose, are applied to the usergroup situation, it becomes clear that the school district has no avenue of redress for the purloined quote.

In addition to the two factors already discussed–the nature of the use (by a reporter in a news story) and the amount of material used (in this case a small part of the copyrighted web site)–the factor of damages must be proven. And in this case, the market value of the usergroup content was negligible.

The final factor is the nature of the copyrighted work itself.

If your school district has a web site or other internet service that includes a usergroup, or if your students, staff, and faculty participate in usergroups or newsgroups sponsored by others, they should be aware that creating a private forum on the web requires locking the cyber door, using techniques such as passwords or encryption.

If someone in Boston or Bangladesh can access your site by typing your site’s URL into a web browser and hitting enter, your site is public.

And that, you tell the technology director, means that the opinions and other material published there might just as well by posted on a billboard on Main Street or composed in giant white billows by a skywriter.

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